Culpable driving causing death

Case study for VCE

1. Sentencing origin and range

Chief Justice Marilyn Warren of the Supreme Court of Victoria

What is the origin and range of sentences available to a judge in Victoria?

Sentencing Advisory Council, 2015

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Who is responsible for sentencing?

Parliament ~ makes the laws ~

   Creates offences and decides what the maximum penalties will be Makes the rules that the courts must apply to cases Sets up punishments for judges and magistrates to use In Australia, responsibility for sentencing is spread among three groups

Courts ~ interpret the laws ~

  Apply the law within the framework set up by parliament Set specific sentences for individual offenders

Government ~ puts laws into operation ~

  Correctional authorities (e.g. prisons) – control offenders after sentencing Adult Parole Board are on parole – supervises offenders who Sentencing Advisory Council, 2015

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Where is sentencing law found?

• • • •

Sentencing Act 1991 Children, Youth and Families Act 2005

Common law – previous court judgments Various Acts and Regulations creating particular offences, for example: –

Crimes Act 1958

deals with a range of crimes, including injury offences –

Road Safety Act 1986

deals with a range of driving offences, including drink driving and drug driving Sentencing Advisory Council, 2015

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Types of sentences Most severe



Imprisonment



Drug treatment order



Community correction order



Fine



Adjourned undertaking Least severe

Sentencing Advisory Council, 2015

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2. Sentencing theory

Source: Victorian Sentencing Manual,

Judicial College of Victoria

What must a judge consider when deciding what sentence to impose?

Sentencing Advisory Council, 2015

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Purposes of sentencing These are the ONLY purposes for which sentences can be given

Just punishment Community protection

PURPOSES OF SENTENCING

Deterrence Denunciation Rehabilitation Sentencing Advisory Council, 2015

7 Sentencing Act 1991 s 5(1)

Principle of parsimony Parsimony

~ extreme care when imposing punishment ~ Where a choice of punishment exists, the judge should take care to choose the least severe option that will achieve the purposes of sentencing

Example

- If there is a choice between imposing a fine or a community correction order, a fine should be imposed provided it meets the purposes of sentencing Sentencing Advisory Council, 2015

8 Sentencing Act 1991 ss 5(3)



(4), 5(6)



(7)

Factors that must be considered Factors that must be considered when sentencing

Maximum penalty & current sentencing practices Type of offence & how serious Circumstances of the offender Victim Aggravating or mitigating factors Relevant Acts of Parliament & previous court decisions

Sentencing Act 1991 s 5(2)

Factors making the crime worse, intention, effects, method, motive, weapons, role the offender played Prior offences, age, character, & mental state.

Alcohol, drug, or gambling addiction.

Personal crisis, guilty plea Impact of crime on victim (e.g.

psychological or physical trauma), material or financial loss Factors that increase or lessen the seriousness of the crime

Victim Impact Statement

Sentencing Advisory Council, 2015

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Victim Impact Statements

• If a court finds a person guilty, a victim of the offence may make a Victim Impact Statement (VIS) • A VIS contains details of any injury, loss, or damage suffered by the victim as a direct result of the offence • A person who has made a VIS can request that it be read aloud during the sentencing hearing Sentencing Advisory Council, 2015

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How long is a sentence really?

Cumulative or concurrent?

• •

Cumulative

 sentences for two or more crimes that run one after the other, e.g. two x five-year prison sentences served cumulatively = 10 years in prison

Concurrent

 sentences for two or more crimes that run at the same time, e.g. two x five-year prison sentences served concurrently = five years in prison • The

total effective sentence

 (TES) (or head sentence) the total imprisonment sentence for all offences within a case, after orders making sentences cumulative or concurrent Sentencing Advisory Council, 2015

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Non-parole period

• • • • A

non-parole period

is set by the court. It is the part of the sentence that must be served in prison before the offender may apply to be released on parole • If a prison sentence of two years or longer is imposed, the court must set a non-parole period Courts have a choice of whether or not to set a non-parole period for prison sentences of one to two years A non-parole period cannot be set for prison sentences of less than one year

Parole

is the prisoner’s release from prison before the end of his or her total possible prison sentence, subject to conditions (e.g. regular reporting to a parole officer) Sentencing Advisory Council, 2015

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3. The crime and the time

What is culpable driving causing death?

What penalties does it bring?

Photo:

Trevor Poultney Sentencing Advisory Council, 2015

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Culpable driving causing death

Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence. Culpable driving includes causing the death of another person while driving: • • • recklessly or negligently or under the influence of alcohol or drugs

Maximum penalty

The maximum penalty for culpable driving causing death is Level 3 imprisonment (maximum 20 years’ imprisonment) and/or a Level 3 fine (2,400 penalty units)

Crimes Act 1958 ss 318(1)



(2)

Sentencing Advisory Council, 2015

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Culpable driving causing death



people sentenced

Sentencing Advisory Council, 2015

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Length of imprisonment

Sentencing Advisory Council, 2015

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Baseline sentencing – current median

Sentencing Advisory Council, 2015

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Baseline sentencing – baseline sentence

Sentencing Advisory Council, 2015

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Age & gender of people sentenced

Sentencing Advisory Council, 2015

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Total effective sentence & non-parole period

Sentencing Advisory Council, 2015

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4. The case

What are the facts of this case?

Sentencing Advisory Council, 2015

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The offender

• • Annie Owther is a 39 year old woman She has pleaded guilty to: – one count of culpable driving causing death – one count of negligently causing serious injury – one count of driving while disqualified Sentencing Advisory Council, 2015

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The crime 1

• Annie spent most of New Year’s Day with her friend Bob Winkle • She drank two cans of beer at home, six cans at a hotel (Annie and Bob walked there and back) and then two more at home • At about 7 p.m. Annie drove Bob to buy some cigarettes • Annie lost control of the car, which slid across the road and collided with a car coming in the opposite direction • Bob was killed instantly Sentencing Advisory Council, 2015

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The crime 2

• A man and his two children in the other car were injured • Annie suffered serious injuries and had no recollection of the collision • It was estimated that Annie’s car was travelling at 110 kph in a 70 kph zone • Her blood alcohol concentration was 0.14 one hour later Sentencing Advisory Council, 2015

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Factors for consideration

• • • • • • • Annie has one prior conviction for driving over 0.05. She has never been in prison She was unlicensed when this collision happened Annie is divorced with 2 children aged 11 and 8. Her husband was violent and abused her Her parents were alcoholics and she had been sexually abused by her father She started drinking at the age of 8 and was made a ward of the state She expressed remorse and has sought help for her drinking problem Annie pleaded guilty to the charges Sentencing Advisory Council, 2015

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5. The sentence

What sentence would you give?

Photo:

Department of Justice & Regulation Sentencing Advisory Council, 2015

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You decide …

1.

2.

3.

What sentence would you impose for each individual count?

What total sentence would you impose?

If imprisonment: – – What would be the total effective sentence?

What would be the non-parole period?

Sentencing Advisory Council, 2015

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The maximum penalty

• Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence • Penalty: Level 3 imprisonment and/or fine (Maximum  20 years and/or 2,400 penalty units) Sentencing Advisory Council, 2015

28 Crimes Act 1958 ss 318A(1)



(2)

What the trial judge decided

Annie Owther’s case, County Court

• •

Count 1

 culpable driving causing death: six years’ imprisonment

Count 2

 negligently cause serious injury: three years’ imprisonment (one year cumulative) •

Total effective sentence:

imprisonment seven years’ •

Non-parole period

: four years and seven months Sentencing Advisory Council, 2015

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6. The appeal

Deputy Chief Magistrate Dan Muling sitting in the Magistrates’ Court of Victoria

What grounds might there be to appeal against the sentence?

Sentencing Advisory Council, 2015

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Grounds for appeal

• • • • The defence appealed the sentence on these grounds: manifestly excessive sentence traumatic childhood, depression, and alcoholism not given sufficient weight as mitigating factors insufficient weight given to the delay in charging Annie error in concluding no positive prospects for rehabilitation Sentencing Advisory Council, 2015

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What the Court of Appeal decided

• • • •

Count 1:

six years’ imprisonment

Count 2:

three years’ imprisonment (one year cumulative)

Total effective sentence:

seven years’ imprisonment

Non-parole period:

four years’ imprisonment

Decision

• Circumstances of the offence and the offender’s driving history call for punishment that significantly reflects specific and general deterrence • Childhood abuse does not lessen legal or moral culpability, but there are prospects of rehabilitation • • Self-induced addiction to drugs and alcohol is not a mitigating factor Fact that she was driving while disqualified is an aggravating factor Sentencing Advisory Council, 2015

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7. Conclusion Effective sentencing achieves a balance between the interests of society, the concerns of the victim and the best interests of the offender The more information society has about crimes and the people involved in them, the more reasonable it is in its demands about sentencing

Photo:

Department of Justice & Regulation Sentencing Advisory Council, 2015

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